처의 성적 자기결정권 보호-부부강간죄의 성립여부에 관한 고찰

Abstract

The problem of marital rape is one of the contral issues of protection of woman's right by the criminal law. There are no explicit provisions in the korean criminal law against marital rape. On this reason, it is needed to deploy the means of protecting married woman's sexual autonomy. The purpose of establishing the regulation against marital rape is protection of woman's sexual automy and sexual autonomy should be conceived of as one of the basic human rights and the rights of pursuing happiness. It took a long time for us to recognize wife's right of sexual automony and to reach a consensus to accuse the husband of rape when wife's right is iufringed by him. The reason why it took so long a time is as follows. The first is the patriarchally distorted way of thinking about marriage and sexuality. Second is that common consciousness of law has been effected in conceiving vilolent sexual intercourse in conjugal relation as cirme because, it was thought, marriage premises the sexual relations. The concept of 'charateristics of conjugal relations', that is suggested as the basis for not recognizing marital rape as a crime, is so changeable and unclear according to the time and culture. Today sexuality means not keeping one's sexuality passively from any intrusion, but freely dertermining it positively. Because it is the same as to a married woman, husband doesn't have a right to demand a violent sexual intercourse with his wife. The criminal law and the related laws regulating sexual and domestic violence provide a procedure of dealing the criminals in the Family Court, not in the Criminal Court, By that procedure it is possible to take special measure towards crimianals on the consideration of the special characteristics of crimes occurred in domestic relationships.